United States Court of Appeals, District of Columbia Circuit
November 21, 2016
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board.
Douglas W. Hall argued the cause and filed the briefs for
Ginn, Attorney, National Labor Relations Board, argued the
cause for respondent. With her on the brief were Richard F.
Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Usha Dheenan, Supervisory Attorney.
L. Neigus argued the cause and filed the brief for intervenor
International Association of Machinists and Aerospace
Workers, District Lodge W24 and Local Lodge 1005 in support
of respondent. Mark D. Schneider and William H. Haller
Before: Griffith, Srinivasan, and Millett, Circuit Judges.
GRIFFITH, CIRCUIT JUDGE.
petition for review challenges the determination of the
National Labor Relations Board that a union's effort to
represent the workers who handle airline baggage is governed
by the National Labor Relations Act and not the Railway Labor
Act. In reaching its conclusion, the Board departed from its
precedent without offering a rationale for its new approach.
We therefore vacate the Board's order and remand the
matter for further proceedings.
National Labor Relations Act, 29 U.S.C. §§ 151
et seq., regulates most private-sector labor
relations. Concerned, however, that labor strife in the
railway and airline industries could disrupt commerce
nationwide, Congress expressly carved out these industries,
which were already covered by the Railway Labor Act, from
coverage under the NLRA framework when it passed the NLRA.
See id. § 152; see also Tex. & New
Orleans R.R. v. Bhd. of Ry. & S.S. Clerks, 281 U.S.
548, 565 (1930) (remarking that "the major purpose of
Congress in passing the Railway Labor Act was to provide a
machinery to prevent strikes"). The Act creates a "special
scheme" for the railway and airline industries, premised
on "their unique role in serving the traveling and
shipping public in interstate commerce." Verrett v.
SABRE Grp., Inc., 70 F.Supp.2d 1277, 1281 (N.D. Okla.
1999). Under this separate regulatory scheme, various
mediation and arbitration boards work to resolve airline and
railway labor disputes that could interrupt interstate
commerce. See id.
question of which labor scheme governs has meaningful
consequences for both employers and employees. Chief among
them are the different powers Congress has given the agencies
that administer the relevant statutes. For example, the NLRB
can initiate unfair-labor-practice proceedings and issue
orders to employers, but the National Mediation Board (NMB),
which administers the RLA, performs no law-enforcement
function. The NMB's role is limited mainly to determining
whether employees in the airline and railway industries have
chosen union representation and then mediating collective
bargaining. In addition, under the RLA, both employers and
employees must exhaust an extended negotiation and mediation
process before they can lawfully resort to self-help
measures, such as unilaterally altering working conditions or
calling a strike. This prolonged process is designed to avoid
strikes and "keep transportation moving" in the
specific subset of the American economy that concerns the
RLA. Pan Am. World Airways, Inc. v. United Bhd. of
Carpenters & Joiners of Am., 324 F.2d 217, 220 (9th
Cir. 1963). Under the NLRA, by contrast, employers and
employees have much more latitude to engage in self-help.
Employees often prefer to organize under the NLRA, as it
protects a wider array of "concerted activity" by
employees than does the RLA. See Beckett v. Atlas Air,
Inc., 968 F.Supp. 814, 820 (E.D.N.Y. 1997) (citing
originally covered only common carriers, but Congress
expanded the Act in 1934 to cover certain companies that
perform transportation-related services for those carriers.
As a result, a company is subject to the RLA and falls
outside the jurisdiction of the NLRB if it "is directly
or indirectly owned or controlled by or under common control
with any carrier" and "operates any equipment or
facilities or performs any service" related to
transportation. 45 U.S.C. § 151. Whether a company is
controlled by a carrier, however, is often unclear. Thus,
"the NLRB and the NMB have, in the absence of any
statute addressing the point, jointly developed their own
method for determining their mutual jurisdictional question
of whether the NLRA or the RLA governs" in any given
case. United Parcel Serv., Inc. v. NLRB, 92 F.3d
1221, 1223 (D.C. Cir. 1996).
NLRB frequently refers the jurisdictional question to the NMB
for an advisory opinion and then defers to the NMB's
view, based on the NMB's expertise in administering the
RLA. See United Parcel Serv., Inc., 318 N.L.R.B.
778, 780 (1995) (referring cases to the NMB "enables the
[NLRB] to obtain the NMB's expertise on jurisdictional
matters most familiar to it"), aff'd, 93
F.3d 1221 (D.C. Cir. 1996); Pan Am. World Airways,
Inc., 115 N.L.R.B. 493, 495 (1956) (explaining the
NLRB's view of the NMB's primacy in resolving
jurisdictional questions that implicate the RLA). The NLRB
follows this accepted practice when a party raises a
colorable claim that the NLRB lacks jurisdiction. See
Spartan Aviation Indus., 337 N.L.R.B. 708, 708 (2002)
("When a party raises a claim of arguable jurisdiction
under the RLA, the Board generally refers the case to the
National Mediation Board . . . for an advisory opinion. . .
."). This practice dates back to at least 1956. See
Pan Am. World Airways, Inc., 115 N.L.R.B. at 495
(declining to assert jurisdiction in a case over which the
NMB claimed jurisdiction). An exception exists to the general
rule, however: under "long-standing practice, " the
NLRB will not refer jurisdictional questions to the NMB in
situations where NMB precedent provides a clear answer.
United Parcel Serv., Inc., 92 F.3d at 1228.
airlines that fly into and out of the Portland International
Airport formed the Portland Airlines Consortium
("PAC" or "the Consortium") to operate
the airport's baggage-handling system. Since 2011, the
Consortium has retained ABM Onsite Services - West
("ABM" or "the Company"), an independent
contractor, to run the system. The issue in this case is whether ABM is a
"carrier" under the RLA and thus falls outside the
NLRB's jurisdiction. The answer turns on the degree of
control that the Consortium exercises over the Company. To
assess that control, it is important to understand the extent
of the Consortium's contractual and practical ...